EPA Set to Take Different Direction on Waters of US Rule

In signing a document to start a review that could lead to reforming or replacing the waters of the United States, or WOTUS, rule, U.S. Environmental Protection Agency Administrator Scott Pruitt hinted a rewrite may include the removal of the so-called “significant nexus” test.

During the past two years since the EPA finalized the rule, which is still hung up in federal court, agriculture and other industry groups along with state governments across the country alleged the WOTUS rule expanded federal jurisdiction on waters not traditionally protected by the Clean Water Act.

The definition of navigable waters was expanded in the WOTUS rule to include ditches, puddles and even dry areas where there was evidence of water previously.

Those areas, the Obama administration’s EPA contended, should be considered waters of the U.S. because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

In the document signed by Pruitt and expected to be posted in the Federal Register, the new administrator indicated a new rule may throw out the significant-nexus standard.

The document is being filed as a result of the executive order signed by President Donald Trump this week to review the WOTUS rule. That order is to review and rescind the rule.

“Today, the EPA and the Army announce their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the executive order,” the document stated.

“In doing so, the agencies will consider interpreting the term ‘navigable waters,’ as defined in the CWA in a manner consistent with the opinion of Justice (Antonin) Scalia in Rapanos (v. U.S.). It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities.”

The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The U.S. Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

In writing the WOTUS rule, however, the Obama EPA clung to the opinion of Justice Anthony Kennedy who suggested a significant nexus test is valid.

“Wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable,'” Justice Kennedy wrote.

“This definition may include wetlands without an actual hydrological connection to navigable-in-fact waters (but presumably not wholly isolated).”

In the document signed by Pruitt this week, EPA suggests it will consider the plural opinion expressed by the late Scalia in Rapanos, who disagreed that the EPA has far-wider jurisdiction on waters.

“In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow during storm events,’ drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody,” Scalia wrote.

“The plain language of the statute simply does not authorize this ‘land is waters’ approach to federal jurisdiction.”

In the document signed by Pruitt, the agency acknowledges “the question of what is a ‘water of the United States’ is one that has generated substantial interest and uncertainty, especially among states, small businesses, the agricultural communities, and environmental organizations, because it relates to the extent of jurisdiction for federal and relevant state regulations.

“… Through new rulemaking, the EPA and the Army seek to provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States,’ consistent with the principles outlined in the executive order and the agencies’ legal authority.”